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UNITED STATES COURT OF MILITARY COMMISSION REVIEW

UNITED STATES,

Appellant, v.

ABD AL-RAHIM HUSSEIN AL-NASHIRI,

Appellee.

) ) ) ) ) ) ) ) ) ) ) ) )

Case No. 18-002 APPELLEE’S MOTION FOR LEAVE TO FILE AND MOTION TO VACATE THE RULINGS OF THE MILITARY JUDGE AND TO COMPEL DISCOVERY OF EVIDENCE RELATING TO DISQUALIFICATION OF THE MILITARY JUDGE AND HIS SUCCESSOR Date: 13 September 2018

TO THE HONORABLE, THE JUDGES OF THE UNITED STATES COURT OF MILITARY COMMISSION REVIEW

COMES NOW Appellee, Abd Al-Rahim Hussein Al-Nashiri, and moves this Honorable

Court for leave to file Appellee’s Motion to Vacate the Rulings of the Military Judge and Motion

to Compel Discovery of Evidence Relating to Disqualification of the Military Judge and his

Successor.

According to publicly available information from the Department of Justice, at all times

relevant to this appeal, Colonel Vance Spath, United States Air Force (Ret.), was engaged in

employment negotiations with the Department of Justice, a party opponent, while presiding over

this case. At the very least, the appearance of bias requires all of the orders currently before the

court to be vacated. See Pepsico, Inc. v. McMillen, 764 F. 2d 458 (7th Cir. 1985) (finding that the

judge in that case was required to disqualify himself when, even without his knowledge, his clerk

solicited employment from one of the party’s firms).

To the extent Appellant intends to dispute the extent of Colonel Spath’s actual and apparent

judicial bias, Appellee moves this Honorable Court to grant discovery, which the government has

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previously denied, as to when Colonel Spath pursued and obtained employment from the

Department of Justice. Additionally, Appellant should be compelled to provide discovery, which

the government has also denied, as to the facts and circumstances surrounding the selection of

Colonel Shelly Schools to succeed Colonel Spath as both the military judge below and the Chief

Judge of the Air Force Trial Judiciary.

STATEMENT OF FACTS

After years of pretrial hearings, something appeared to change on 11 April 2017, when

Colonel Spath ordered what he himself would later describe as “an aggressive 2018 calendar year

schedule, with significant time to be spent here at Guantanamo Bay[.]” (Trans. 12344; AE 203Q.)

Where Colonel Spath had previously ordered four separate hearings totaling forty-four days in

2017, he ordered the parties to prepare for seven hearings totaling 146 days in 2018. Compare AE

356A with AE 203Q.

When the defense discovered what the government refers to as a “legacy microphone” in

their attorney-client meeting room in August 2017, and later sought both discovery and an

evidentiary hearing to satisfy their ethical obligations to Appellee, Colonel Spath summarily

denied the defense’s requests and—oddly—dismissed them as “fake news.” (Trans. at 11558-59.)

He took the unprecedented step of holding a Marine Brigadier General in contempt, a decision

later found to be unlawful. Baker v. Spath, 2018 U.S. Dist. LEXIS 101622 (D.D.C. 2018). He

then proceeded apace with his “aggressive trial schedule” for months, which included holding

evidentiary hearings where Appellee was represented only by a Navy Lieutenant. And Colonel

Spath repeatedly made the strange pronouncement that learned counsel was “not practicable in

these proceedings” under 10 U.S.C. § 949a(b)(2)(C)(ii). (Trans. at 12345.)

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A) Before Abating Proceedings, and Ultimately Retiring, Colonel Spath Exhibited Actual Bias Toward the Defense.

In the days before he abated proceedings, Colonel Spath disqualified himself from further

participation in the military commission below by exhibiting actual bias toward the defense. He

announced he was not dismissing the case because, “I am not rewarding the defense for their clear

misbehavior and misconduct.” (Trans. at 12376.) “As I said, I follow the law. I follow orders. I

don’t just disobey them at will, scoff at the process; but we do have a situation where people are.”

(Trans. at 12377.) He accused the defense of engaging “in a revolution to the system.” (Trans. at

12373.) “And they’ve demonstrated it completely, repeatedly, and publicly with little response,

encouraging them to continue to demonstrate it repeatedly, publicly, and constantly.” (Trans. at

12373.)

He identified “significant flaws within the commission process, particularly within the

defense organization, and it demonstrates an organization intent on stopping the system, not

working within the system that they signed up to work within.” (Trans. at 12372.) He accused the

defense of ignoring the “rules.” (Trans. at 12372.) “[I]magine what the Department of Defense

would look like if we just violated orders willy-nilly as we went through this process?” (Trans. at

12370.) “Because we’ve seen what it would be like here in the commissions. Frankly, by the

Military Commission Defense Office and their representatives.” (Trans. at 12370.)

Colonel Spath publicly complained the Deputy Chief Defense Counsel, also an O-6,

appeared in the uniform of the day when summoned to appear before the military judge. (Trans.

at 12366.) “I’ve never seen a judge advocate show up in Class B’s time after time. I’m not

oblivious; I know what that says. What little respect you have for the commission is obvious. A

short-sleeve shirt, no tie, not coat; I get it. That’s the message. That’s been the message from the

defense for five months. And it’s well received. I got it. I’ve heard you.” (Trans. at 12366.)

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“Over the last five months—yes, my frustration with the defense has been apparent. I said

it yesterday and I’ll continue to say it. I believe its demonstrated lawlessness on their side; they

don’t follow orders; they don’t follow direction; they don’t obey commission regulations, or rules,

or subpoenas, as we saw.” (Trans. at 12364-65.) He accused the defense of violating “orders of

the commission, violat[ing] subpoenas…frankly, rulings openly in court, defiantly.” (Trans. at

12355.) “We need to know are there going to be any actions taken against what could be viewed

as kind of the lawless defense function who defy orders, defy subpoenas, and ignore rulings.”

(Trans. at 12352.) Colonel Spath announced it was not his “job to press on in the face of constant

roadblocks, recalcitrance, and disobeyance of orders.” (Trans. at 12349.)

“No end in sight to the behavior of the Military Commissions Defense Organization, a

defense community that believes it can exercise, and did, unilateral authority to excuse defense

counsel at any stage of the proceeding, to include learned counsel.” (Trans. at 12347.) “What this

shows me is its more information that General Baker, Mr. Kammen, and the two DoD learned

counsel’s actions are both arbitrary and purposeful. They are directed at stopping or mortally

harming these proceedings.” (Trans. at 12343.)

B) The Defense has Since Learned Colonel Spath’s Bias Against the Defense is, In Fact and in Appearance, Attributable to the Fact Colonel Spath was Somewhere in the Hiring Process with the Department of Justice, a Party Opponent in this Case, at the Time He, Among Other Things, Accused the Defense of “Demonstrated Lawlessness.”

On information and belief, Colonel Spath, the military judge whose rulings are the subject

of the government’s appeal, has successfully pursued and obtained a position as an administrative

law judge (“ALJ”) at the Executive Office for Immigration Review (EOIR). On 18 July 2018,

Appellee sent the government a discovery request seeking information on Colonel Spath’s

employment with the Department of Justice. (Attachment A.)

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In a response that should illuminate all of the government’s pleadings before this Court,1

the government denied Appellee’s request for discovery, primarily, on the grounds Appellee had

not proven the Department of Justice had hired Colonel Spath as an employee. “This request,

however, is wholly conclusory in nature and fails to provide any evidence or proof in support.”

(Attachment B) (emphasis in original). “Based on its review of the unsubstantiated assertions

provided in the Defense discovery request, the Government finds no reasonable objective basis to

question the impartiality of the former presiding Military Judge and therefore no cause to act on

the request.” (Id.)

On 10 September 2018—a mere five days after the government denied the defense’s

discovery request—the Attorney General greeted his newest employees, which the Department of

Justice hailed as “the Largest Class of Immigration Judges in History for the Executive Office for

Immigration Review.”2 In his remarks to the new judges, the Attorney General likened the “good

lawyers” who would soon appear before them, “just like they do in federal criminal court,”3 to

“water seeping through an earthen dam to get around the plain words of (immigration law) to

advance their clients’ interests.”4

1 Indeed, it follows a long-standing pattern in which the prosecution fails to provide discovery until caught. United States v. Stellato, 74 M.J. 473, 481-82 (C.A.A.F. 2015) (“When contrasting the mandates of these discovery and ethics rules with the actions of the trial counsel in this case, we are deeply troubled by the amount of gamesmanship that was employed, the number of pretrial motions that were required to be filed by the defense and resolved by the military judge, and the continual surprises and delays that permeated this case.”). 2 https://www.justice.gov/eoir (last visited 11 Sep. 18). 3 The Attorney General’s reference to criminal defense attorneys appears to have been unscripted as it does not appear in his prepared remarks. See, https://www.bing.com/videos/search?q=attorney+general+remarks+to+largest+class+of+immigration+judges&&view=detail&mid=FB713F51F098FC57FDD3FB713F51F098FC57FDD3&&FORM=VRDGAR at 4:27 (last visited 12 Sep. 18). 4 https://www.justice.gov/opa/speech/attorney-general-sessions-delivers-remarks-largest-class-immigration-judges-history (last visited 11 Sep. 18).

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The Attorney General then shook hands with his newest immigration judges.

Appellee expects the government will argue the man wearing the nametag “Vance Spath”

is not in fact Colonel Spath, that Appellee hasn’t proven it is Colonel Spath, that the prosecution

had no idea the government was hiring Colonel Spath, or that he is merely a “legacy Colonel,” but

the Attorney General’s decision to hire Colonel Spath as an immigration judge invalidates all of

the rulings made while he simultaneously presided in this case and negotiated employment with

the Department of Justice. Pepsico, Inc., 764 F. 2d at 461. Further, Appellee has more than met

the low threshold required for the “liberal discovery” required to put an end to the latest

government “gamesmanship.” United States v. Roberts, 59 M.J. 323, 325 (C.A.A.F. 2004).

ARGUMENT

“Our criminal justice system is founded on the public’s faith in the impartial execution of

duties by the important actors in that system.” Scott v. United States, 559 A. 2d 745, 748 (D.C.

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Ct. App. 1988) (en banc) (citing Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787

(1987)). “The dignity and independence of the judiciary are diminished when the judge comes

before the lawyers in the case in the role of a suppliant for employment.” Pepsico, Inc., 764 F. 2d

at 461.

Colonel Spath is no mere employee of a “federal agency,” as the government appears to

suggest in its response to the defense request for discovery. (Attachment B). Now an immigration

judge, Colonel Spath “shall be subject to such supervision and shall perform such duties as the

Attorney General shall prescribe[.]” 10 U.S.C. § 1101(b)(4). Indeed, the Attorney General

chuckled during his remarks as he quoted that very provision to Colonel Spath and his fellow

immigration judges on 10 September 2018.5

The conflict of interest, and accompanying ethical6 and statutory breaches,7 now before

this Court cannot be distinguished from those in Scott. 559 A. 2d at 756 (“What occurred here,

however, involved a trial judge who, at all times while he was presiding at Scott’s trial and

sentencing, was, unknown to Scott, either seeking or had accepted employment in the executive

office for all federal prosecutors while one of those prosecutors was prosecuting Scott.”); United

States v. Quintanilla, 56 M.J. 37, 80-81 (C.A.A.F. 2001); Wilson v. Ouelette, 34 M.J. 798, 799

(N.M.C.M.R. 1991). And this is not the first time Colonel Spath and the judges he supervised on

5https://www.bing.com/videos/search?q=attorney+general+remarks+to+largest+class+of+immigration+judges&&view=detail&mid=FB713F51F098FC57FDD3FB713F51F098FC57FDD3&&FORM=VRDGAR at 4:30-41 (last visited 12 Sep. 18). 6 Canon 3(C)(1) of the Code of Judicial Conduct provides in relevant part: “A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned[.]” 7Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 867 (1988) (“These facts create the kind of appearance of impropriety that § 455(a) was intended to prevent.”) (citing 10 U.S.C. § 455(a)).

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the Air Force Trial Judiciary have failed to recuse for bias. United States v. Vargas, 2018 CCA

LEXIS 137 (A.F. Ct. Crim. App. 2018).

Importantly, the EOIR recently announced it hired a recent group of immigration judges

“in approximately 266 days, down from an average of 742 days just one year ago.”8 Thus, Colonel

Spath was apparently negotiating his employment with the Attorney General for years while

presiding in this case, and without disclosing this conflict to the defense. It is also near certain that

all of the rulings that are the subject of the government’s interlocutory appeal were tainted by this

self-evident conflict and therefore are void. To the extent the government persists in stonewalling

as to when it began its surreptitious hiring of the judge in this case, this Court should invalidate at

least 742 days of Colonel Spath’s rulings below.

“[I]t would be inconsistent with the goals of our code to require certain standards of

behavior from the judiciary in the interest of avoiding the appearance of partiality, but then to

allow a judge’s ruling to stand when those standards have been violated.” Blaisdell v. City of

Rochester, 135 N.H. 589 (N.H. 1992). “The appearance of partiality permeates the proceeding.”

Id.

Unlike in Liljeberg and Pepsico, Colonel Spath had actual knowledge of the source of the

conflict, and “an independent duty to disclose the relationship that created the conflict of interest

and failed to do so.” Verlado v. Ovitt, 2007 VT 69, P29 (Vt. 2007). The “impropriety here is

substantial and the conduct that created it is inexcusable.” Id. Indeed, Colonel Spath’s then-

inexplicable demand last summer for haste at all costs, and his refusal to permit the defense any

time or opportunity to investigate what the government now admits was at least one “legacy

8 https://www.justice.gov/opa/pr/executive-office-immigration-review-announces-largest-immigration-judge-investiture-least (last visited 12 Sep. 2018).

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microphone” hidden in their attorney-client meeting spaces is now very much explicable. Colonel

Spath was, at best, attempting to rush the proceedings forward so that he could wrap up Appellee’s

case before his employment with the Department of Justice was scheduled to begin, or more

nefariously, seeking to curry favor as a “reliable” employee as his application to be an immigration

judge was being reviewed.

Finally, the Court of Appeals for the District of Columbia Circuit has consistently held

that questions of judicial disqualification are one of the few areas warranting the issuance of

extraordinary writs. In re Mohammad, 866 F.3d 473, 475 (D.C. Cir. 2017). “Mandamus is an

appropriate vehicle for seeking recusal of a judicial officer during the pendency of a case, as

“ordinary appellate review” following a final judgment is “insufficient” to cure “the existence of

actual or apparent bias”—“[w]ith actual bias ... because it is too difficult to detect all of the ways

that bias can influence a proceeding” and “[w]ith apparent bias” because it “fails to restore public

confidence in the integrity of the judicial process.” Id.

Appellee respectfully requests this Court vacate the rulings of Colonel Spath that are the

subject of this appeal and compel production of the discovery sought by the defense on 18 July

2018 and 13 August 2018.9

CONCLUSION

For the foregoing reasons, Appellee moves this Court to grant this motion and vacate

Colonel Spath’s rulings below and order the government to produce the discovery as listed in

both attached requests.

9 Appellee also requested production of discovery related to Colonel Spath’s supervision of Colonel Shelly Schools (Attachment C), which was also denied by the government on 5 September 2018. (Attachment D). Colonel Schools was supervised by Colonel Spath for three of the past four years, and she has succeeded him as both the detailed military judge on this case and as the Chief Trial Judge of the Air Force. Relief for the judicial, ethical lapses in the case must have “prophylactic value,” and that may require Colonel Schools’ recusal as well. Scott, 559 A. 2d at 755.

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Respectfully submitted, /s/ Alaric Piette Alaric Piette LT, JAGC, USN Detailed Defense Counsel Military Commissions Defense Organization /s/ Brian Mizer Brian Mizer CAPT, JAGC, USN Detailed Defense Counsel Military Commissions Defense Organization

CERTIFICATE OF SERVICE

I hereby certify that on 13 September 2018, I caused copies of the foregoing to be served

on the counsel for Appellant via e-mail.

Respectfully submitted,

/s/ Alaric Piette Alaric Piette LT, JAGC, USN Counsel for Appellee

ATTACHMENT

A

DEPARTMENT OF DEFENSE MILITARY COMMISSIONS DEFENSE ORGANIZATION

1620 DEFENSE PENTAGON WASHINGTON, DC 20301-1620

18 July 2018 MEMORANDUM FOR Trial Counsel From: LT Alaric A. Piette, JAGC, USN, Detailed Defense Counsel SUBJECT: DEFENSE REQUEST FOR DISCOVERY OF AND PRESERVATION OF MATERIALS AND COMMUNICATIONS REGARDING THE APPLICATION FOR AND EMPLOYMENT OF COLONEL VANCE SPATH, USAF, AS AN AMDINISTRATIVE LAW JUDGE 1. Mr. Al-Nashiri is currently facing charges resulting from his alleged involvement in al-Qaeda and responsibility in the attacks on the USS COLE. Charges were referred as capital by the Office of the Convening Authority for Military Commissions and accordingly Mr. Al-Nashiri faces the ultimate sentence of death if convicted of the alleged crimes. Pursuant to 10 U.S.C. § 949j, Rules for Military Commission 701(c)(1) and 701(e)(l)(C), and the Due Process Clause of the United States Constitution, Mr. Al-Nashiri, through counsel, requests the government furnish all documents and/or information and/or communications (in hardcopy or digital) in its possession, or known or discoverable by the government, which are material to the preparation of Mr. Al Nashiri's defense.

2. On information and belief, the Defense understands that Colonel Vance Spath, USAF, the military judge overseeing Mr. Al Nashiri’s capital trial before a military commission, has pursued and obtained a position as an administrative law judge (ALJ) at the Executive Office for Immigration Review (EOIR). EOIR is “an agency within the Department of Justice. Under delegated authority from the Attorney General, immigration judges and the Board of Immigration Appeals interpret and adjudicate immigration cases according to United States immigration laws.”1 Pursuit of employment with the Department of Justice, a party to this case, raises good faith concerns over whether Judge Spath operated under an actual or apparent disqualifying conflict of interest while concomitantly presiding over this case. Pepsico, Inc. v. McMillen, 764 F. 2d 458 (7th Cir. 1985). 3. In light of the facts stated above, the defense requests the following be preserved and provided as discovery:

1 https://www.justice.gov/eoir/pr/eoir-announces-new-administrative-law-judge

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a. Any and all emails and/or files and/or data concerning the pursuit of the ALJ position by Colonel Spath. This request includes the request for immediate seizure, search, and preservation of Colonel Spath’s government computers, phones, email accounts, internet history, to determine whether any of this relevant material of his pursuit of this position is present on government-owned devices.

b. Any and all communications and files between any member of the DOJ (or other government agencies), any attorneys general, member of the prosecution, convening authority’s office, and/or the trial judiciary regarding Colonel Spath’s pursuit of the ALJ position.

c. Any application, records, communications, notes etc… regarding Colonel Spath’s application process for this ALJ position held by any agency.

d. Any other material not specifically mentioned regarding and relevant to Colonel Spath’s pursuit of the ALJ position.

4. This also serves a preservation request for the materials requested above. Please take immediate steps to locate and preserve the material regardless of the government’s position regarding the discoverability of the requested material. Further, this is a request for all material currently in digital or electronic form to be produced or preserved in the original “raw” format. 5. Thank you for your prompt attention to this matter. If you have any questions about this request or would like to discuss it further, please feel free to contact me.

Very Respectfully Submitted,

//s// A.A.PIETTE LT, JAGC, USN Detailed Defense Counsel

The above discovery request was delivered to trial counsel via email on 18 July 2018.

ATTACHMENT

B

ATTACHMENT C

DEPARTMENT OF DEFENSE MILITARY COMMISSIONS DEFENSE ORGANIZATION

1620 DEFENSE PENTAGON WASHINGTON, DC 20301-1620

13 Aug 2018 MEMORANDUM FOR Trial Counsel From: LT Alaric Piette, JAGC, USN, Detailed Defense Counsel SUBJECT: DEFENSE REQUEST FOR DISCOVERY OF AND PRESERVATION OF MATERIALS AND COMMUNICATIONS REGARDING THE SUPERVISION AND CONTACT BETWEEN COLONEL VANCE SPATH AND COLONEL SHELLY SCHOOLS ICO UNITED STATES V. AL-NASHIRI 1. Mr. Al-Nashiri is currently facing charges resulting from his alleged involvement in al-Qaeda and its alleged attack on the USS COLE (DDG-67). The Convening Authority for Military Commissions referred the charges capitally, and Mr. Al-Nashiri faces a potential death sentence if convicted of the alleged offenses. Pursuant to 10 U.S.C. § 949j, Rules for Military Commission 701(c)(1) and 701(e)(l)(C), and the Due Process Clause of the United States Constitution, Mr. Al-Nashiri, through counsel, requests the government furnish all documents and/or information and/or communications (in hardcopy or digital) in its possession, or known or discoverable by the government, which are material to the preparation of Mr. Al-Nashiri's defense. This request (and all future and past requests) include a request that all material currently (or originally) in digital form be produced in the raw digital form without alteration to the content or metadata. 2. On 6 August 2018, Colonel James Pohl, USA, Chief Trial Judge of the Military Commissions, detailed Colonel Shelly W. Schools, USAF, as the new military judge in this case. Colonel Schools served as a military judge for three of the last four years, and she was subject to Colonel Spath’s rating and supervision during the time period in which Colonel Spath was both the Chief Trial Judge of the Air Force and likely suffering from a conflict of interest in this case (see Al-Nashiri discovery request dated 10 August 2018). If so, Colonel Schools may be laboring herself under an apparent or actual conflict, especially if asked to find that her direct supervisor and rater acted improperly. 3. In light of the facts stated above, the defense requests the following be preserved and produced as discovery:

a) All material pertaining to the supervision of Colonel Schools by Colonel Spath; b) All materials regarding any and all ratings and/or endorsements and/or recommendations

of Colonel Schools by Colonel Spath including the documents themselves; c) All communications between Colonel Schools and Colonel Spath of a supervisory and/or

advisory character; d) All communications between Colonel Schools and Colonel Spath regarding the Military

Commissions and/or this case; e) All materials related to Colonel Spath’s involvement in Colonel Schools’ selection to serve

on the Office of Military Commissions Trial Judiciary; f) All materials or communications regarding any knowledge Colonel Schools had of Colonel

Spath’s post-retirement employment search; and

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g) Any and all materials, records, and/or communications regarding Colonel Schools’ opinions, perceptions, commentary, etc., of the current abatement in this case.

4. Thank you for your prompt attention to this matter. If you have any questions about this request or would like to discuss it further, please feel free to contact me. Respectfully submitted,

/s/ Alaric Piette ALARIC PIETTE LT, JAGC, USN Detailed Defense Counsel

The above discovery request was delivered to trial counsel via email on 13 August 2018.

ATTACHMENT D